One of the biggest hurdles facing the former players suing the NFL for concussions suffered during their playing careers arises from the claim that the NFL failed to warn the players regarding the risks of concussions. The NFL undoubtedly will defend that specific allegation by arguing that, even if warnings had been issued, the players would not have stopped playing football.

Supporting that contention will be the fact that no NFL player has retired due to fear of potential harm from concussions. Yes, some have retired due to the immediate consequences of multiple concussions. But no NFL player, current or prospective, has passed on playing football at its highest level due merely to the fear that the player may suffer one or more concussions that may cause problems for him later in life.

The fact that NFL teams drafted 253 players from Thursday through Saturday and are now signing scores of undrafted players with not a single one says “no thanks” confirms the mindset of a football player, and the potentially misplaced notion that warnings would have dissuaded any of them from playing football. Highlighting the fact that fear of concussions has yet to scare away incoming players is the arrival at the NFL level of receiver Nick Toon. The son of Al Toon, who ultimately left the game due to the debilitating effects of multiple serious concussions, Nick Toon will join the Saints.

Yes, the Saints. The new poster children for the NFL’s effort to take some of the violence out of an inherently violent game. And Nick Toon, who knows as much if not more than any NFL player about the impact of concussions, won’t be saying “no thanks.”

“I remember vividly right after he retired and he got his last concussion laying on the bed with him and hanging out and we couldn’t turn the lights on or anything,” Nick Toon told Gary Myers of the New York Daily News last year regarding Al Toon’s struggles with head injuries. “It seemed like he was in there forever. Obviously, kids are impressionable at that age. I don’t know that I was really aware of the severity of the situation. I think my mom and dad did a good job handling the situation because it didn’t scar me.”

It also didn’t keep Nick Toon from following in his father’s footsteps.

The son of Al Toon and 252 other players enter the NFL at a time when more and more former players are filing suit regarding their own concussions. Somewhat surprisingly, the NFL invited three of the former players who currently are suing the league to come to New York and announce one of their former teams’ picks on Friday night: Packers safety LeRoy Butler, Jaguars running back Fred Taylor, and Buccaneers safety Dexter Jackson.

The number of concussion plaintiffs now exceeds 1,300. With players like Sean Salisbury openly recruiting more players to sue by playing the “strength in numbers” card, more undoubtedly will join, justifying their decision by the fact that so many others already have done so. As the numbers grow, the disconnect between the claims being made and the mindset of a football player will become more pronounced.

That’s not to say that claims regarding the NFL’s failure to take meaningful steps before 2009 to protect players from concussions will lack merit. But as players who now know all they need to know about the risks associated with playing football continue to flock to the NFL, it will be harder and harder to get a judge or a jury to accept that players would have walked away from the sport if they had known then what all players know now.

This is such a mess. If the NFL knew of the dangers of concussions, when most of the plaintiffs were playing, and did nothing to curb them then they should be sued. But while concussions are a horrible thing, it does come with the territory. I understand that concussions are very serious, but how ridiculous would it be if former Microsoft employees sued Microsoft for carpal tunnel syndrome? Like I said, this whole situation is a mess and I do not foresee a positive conclusion to this.

You know, I’m finally beginning to realize that the real reason the NFL/Goodell have been changing so many rules to make the game less violent has nothing to do with player safety in it’s own right, they simply anticipated this massive slate of concussion-based lawsuits, and have merely been insulating themselves against being bankrupted.

Master stroke, really. Considering they began flag-footballing up the game several years ago.

It’s really simple. Current players make money. Former players don’t. Players like Dexter Jackson and many of these others were playing up until a few years ago. If concussions are such a big deal to them now, why weren’t they talking about it while they were playing? Answer: $$$

These lawsuits are erroneous. Unless your last name is marinovich, you were not forced to play this game. It’s like a businessman suing his employer because he is constantly stressed and it affects his homelife negatively. Sorry, but unfortunately there are side affects to everything we do, and for football players living a ‘lesser’ quality of life after you retire just happens to be a byproduct of playing the game.

And rickey jackson, weren’t you in a severe auto accident? How do you know a brain injury from that is not the cause of your brain problems today

“Supporting that contention will be the fact that no NFL player has retired due to fear of potential harm from concussions. Yes, some have retired due to the immediate consequences of multiple concussions. But no NFL player, current or prospective, has passed on playing football at its highest level due merely to the fear that the player may suffer one or more concussions that may cause problems for him later in life.”

So many players are intellectually limited and therefore constrained as to their employment marketablity. Let’s see …… sell Chinese-made crap at WalMart for subsistence wages or play in the NFL for multi-millions per year. Any sane juror knows hat these players would do.

The “no one retired because they were afraid of concussions” argument doesn’t really hold any water because the League only knows what the player’s stated reason was and that may not have been the true reason or the only reason but the reason that let them leave with dignity.

It also doesn’t take into account the players that never turned pro but could have had a reasonable chance of making a go of it. How can they say what these players reasons were? Undoubtedly, some judged the risks v benefits not to be worth it.

Seriously, if “they wouldn’t have listened anyway” is their best argument, they better be stashing away settlement cash by the truckload now ’cause they are going to lose big with that reasoning.

In the true American spirit, I am contemplating filing my own Law Suit against the NFL. The basic premise; I wanted to play but didn’t for fear of the impact of concussions that the NFL allows to happen on the playing field. The NFL must be responsible and owe me $ as it is obvious they don’t agree that the game is a threat to a players’ health. If the retired players who chose to play lose their suit, my case is strengthen. I, of course, would be willing to make a reasonable settlement. Anyone else want to join my class action suit?

After too many nights spent at Holiday Inns, I’ve become a legal expert. You have to be one if you’re a true fan these days. For the common football fan, it is important to understand what the concussion lawsuit will ultimately mean for fans. NO FOOTBALL. Once medical research links concussions to brain injury, it will be game over because high schools and colleges, which usually self-insure instead of buying liability insurance, will find the liability risks from football programs too high. This will kill the NFL’s free player development system. Because concussions are inevitable while playing the game by the rules, the risk of brain damage is unavoidable. High school teams will be the first to fall followed by the NCAA. In the end, the NFL will end up in China or some third-world country where there is no liability.

The issue isn’t whether or not you can get a concussion playing football, it is about sending a kid back out onto the field with a concussion.

The facts are that if you don’t allow the brain to heal after a concussion, before subjecting it to a 2nd round of beatings, then the damage caused is catastrophic compared to if you had rested and allowed things to heal.

10 years ago, would Colt McCoy have stayed out 4 weeks following a concussion? Or would he have sucked it up and gotten back on the field.

“it will be harder and harder to get a judge or a jury to accept that players would have walked away from the sport if they had known then what all players know now.”

First, you grossly overestimate the intelligence of the average jury. Second, any lawyer could counter your “defense” by saying, “Of course, the new players are willing to play. They are taking care of concussions now and the League is FINALLY protecting the players. The NFL failed to protect the players when my client(s) played.”. In many ways, the steps the NFL are taking to make the game “safer” opens the door to these guys having a jury take them seriously. As with anything that is presented to a jury, jury selection will make all the difference. You don’t have to be right, you just have the right idiots to sit on the jury.

What’s interesting is that no current nfl players who have suffered multiple concussions have joined the lawsuit. Players like Javid Best of Detroit and Derek Anderson of Carolina would rather keep earning their nfl paychecks then join this lawsuit!

“The NFL undoubtedly will defend that specific allegation by arguing that, even if warnings had been issued, the players would not have stopped playing football.”

Without taking a stance on this whole case, or stating an opinion on whether the NFL will actually use this type of defense, I don’t think this makes much sense.

It seems like that would be the same as tobacco companies, when they were sued to put a safety warning on their packaging, saying that “even if we put this on here, people would have still smoked.”

Obviously people do still smoke with the warning on there, but the numbers did go measurably down.

@east96st

I think your assessment is pretty fair. You could also include the fact that today’s players are compensated financially much better than former players.

@philrat

I don’t think it’s that interesting. The effects that the former players are alleging are usually long term. Current players don’t want to sue their employer and potentially give up their paycheck to seek compensation for effects they haven’t experienced yet.

@gdpont

I think you’re absolutely correct about part of your post. However, the NFL can easily afford to create a talent development program. I actually hope this ends (and here is where all the thumbs downs are going to happen) high school football. While an adult player certainly is capable of making the choice to play a dangerous game or not, a young child is not.

The League is going to lose these lawsuits for one very simple reason – they have never, and still don’t, require players to wear all the safety equipment available to them or require the use of the most state of the art safety equipment. If they did and fined players who didn’t comply, like they do players who wear the wrong color shoes, they could easily show they are doing everything possible to keep the players safe and those who choose not to comply well, they are in violation of workplace safety rules and don’t have a leg to stand on.

As far as i’m concerned the players that are suing are just money grabbers because they would have played anyway just like all the players that just got drafted are still playing anyway.The suing players are gonna end the game of football that they claim they love so much.it’s BS!!!!!

Terrific post. The tobacco litigation comparison is right on. I suspect this litigation will follow a similar long and winding road. I also think it is quite possible that strict liability (no fault) rules will be applied because football is inherently dangerous: concussions are unavoidable when playing football even with enhanced protective gear. If that happens, even waivers of liability would be useless just as the warnings on cigarette packs didn’t help the tobacco companies.

As to high schools and colleges, concussions to young players are even more damaging because these players are still in their developmental years, both physical and mental. Even if the NFL decided to start a minor league to develop players, I suspect they would be limited to players who have reached the age where there brains are fully developed, which I think is in the mid-20’s. This would seriously limit the ability to develop players at a reasonable cost. This added cost would reduce that player’s value to a team, therefore salaries would drop. These lower salaries would lead to the best athletes to compete in other sports like baseball, basketball, soccer, etc. where the money is better and the risk lower.

As I see it, the light at the end of the NFL’s tunnel is an oncoming train. The owners will have to adapt quickly to survive the crash.